Buy America Waiver Notification, 54281-54283 [2021-21293]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Notices]
[Pages 54281-54283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21293]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Buy America Waiver Notification

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice.

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SUMMARY: This notice provides information regarding FHWA's finding that 
it is appropriate to grant a Buy America waiver to the Iowa Department 
of Transportation (Iowa DOT) for procurement of foreign iron and steel 
components for two elevators or let-down structures for the pedestrian 
bridge associated with the I-74 Mississippi River Bridge Project in 
Bettendorf, Iowa, specifically including: (i) Traction elevator 
components; (ii) elevator guide rails; and (iii) certain auxiliary 
components of the elevators or let-down structures.

DATES: The effective date of the waiver is October 1, 2021.

FOR FURTHER INFORMATION CONTACT: For questions about this notice, 
please contact Mr. Brian Hogge, FHWA Office of Infrastructure, 202-366-
1562, or via email at [email protected]. For legal questions, please 
contact Mr. Patrick C. Smith, FHWA Office of the Chief Counsel, 202-
366-1345, or via email at [email protected]. Office hours for 
FHWA are from 8:00 a.m. to 4:30 p.m., E.T., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this document may be downloaded from the 
Federal Register's home page at: www.FederalRegister.gov and the 
Government Publishing Office's database at: www.GovInfo.gov.

Background

    FHWA's Buy America regulation in 23 CFR 635.410 requires a domestic 
manufacturing process for any steel or iron products (including 
protective coatings) that are permanently incorporated in a Federal-aid 
construction project. The regulation also provides for a waiver of the 
Buy America requirements when the application would be inconsistent 
with the public interest or when satisfactory quality domestic steel 
and iron products are not produced in the United States in sufficient 
and reasonably available quantities. This notice provides information 
regarding FHWA's finding that it is appropriate to grant Iowa DOT a Buy 
America waiver for procurement

[[Page 54282]]

of foreign iron and steel components for two elevators or let-down 
structures for the pedestrian bridge associated with the I-74 
Mississippi River Bridge Project in Bettendorf, Iowa, specifically 
including: (i) Traction elevator components; (ii) elevator guide rails; 
and (iii) certain auxiliary components of the elevators or let-down 
structures.
    Background on the I-74 Mississippi River Bridge Project: The city 
of Bettendorf, Iowa, through Iowa DOT, is seeking a Buy America waiver 
for two pedestrian elevators, or let-down structures, needed for a 
pedestrian bridge associated with the I-74 Mississippi River Bridge 
Project in Bettendorf, Iowa. The waiver request is for procurement of 
foreign iron and steel components for construction of the two 
elevators, specifically including: (i) Traction elevator components; 
(ii) elevator guide rails; and (iii) certain auxiliary components of 
the elevators or let-down structures.
    The two elevators are part of the approximately $1.2 billion I-74 
Mississippi River Bridge Reconstruction Project. The elevators are 
needed to meet accessibility requirements under the Americans with 
Disabilities Act, 42 U.S.C. 12101, et seq., for a new pedestrian 
bridge. The elevators also provide additional safety for pedestrians 
and bicyclists. The pedestrian bridge and elevators will provide links 
to both the Illinois and Iowa river trail network.
    The Pedestrian Bridge and elevators are included under an 
approximately $2.2 million contract. The city originally estimated that 
the elevators would cost approximately $427,000. This contract is 100 
percent funded by the city of Bettendorf, Iowa, with no Federal 
funding. However, the pedestrian bridge and structures connecting the 
bridge to the trail network were included under the final environmental 
impact statement and record for the overall I-74 Mississippi River 
Bridge Project. Therefore, under 23 U.S.C. 313(g), FHWA's Buy America 
provision applies to the contract and letdown structure. All other 
contracts associated with the approximately $1.2 billion project are 
expected to comply with Buy America requirements.
    Background on Waiver Request: The Iowa DOT originally submitted a 
Buy America waiver request letter to FHWA for certain components of the 
elevators in March 2020. Prior to requesting a waiver, the city of 
Bettendorf unsuccessfully attempted to identify domestic manufacturers 
for these products. The Iowa DOT reported to FHWA in the waiver request 
letter that the city contacted 11 U.S. elevator manufacturers, but none 
of them could produce elevators meeting the needs of the project using 
only U.S. steel. The March 2020 request letter sought a waiver for 
traction elevator components and elevator guide rails.
    The elevators identified by Iowa DOT and the city as meeting the 
needs of the project are produced by KONE Oyj, a company with 
headquarters in Finland, but also with operations and facilities in the 
United States. Iowa DOT identifies the elevators as two Monospace 500 
model elevators with glass rear walls.
    After receiving the waiver request, in April 2020 FHWA requested 
that the Iowa DOT and the city of Bettendorf answer questions about 
their previous search for Buy America compliant products. FHWA also 
requested that they continue seeking to maximize the use of goods, 
products, and materials produced in the U.S. on the project. In 
response to this request and later follow-up questions from FHWA, the 
city of Bettendorf attempted over several additional months to identify 
domestic manufacturers that it had not identified in its original 
search, or, if full compliance was not possible, foreign manufacturers 
that could maximize use of domestic content by using greater quantities 
of U.S. steel. These additional search activities continued between 
April and August of 2020, but the city did not identify compliant 
products.
    In August 2020, Iowa DOT responded to FHWA's questions. It 
explained that none of the manufacturers Iowa DOT or the city of 
Bettendorf contacted could satisfy Buy America requirements. It also 
explained that none of the manufacturers could provide reliable 
certifications of domestic content percentages (to show maximization of 
domestic content). After completing its additional research, Iowa DOT 
expanded its waiver request to include certain additional components of 
the elevator letdown structures. Iowa DOT explained that it could not 
find a manufacturer to meet Buy America requirements for additional 
auxiliary ``components [in the elevator letdown structures], such as 
mechanical air handling equipment.'' The contacted manufacturers 
explained that they were unable to verify the origin of source of 
materials to satisfy FHWA's Buy America requirements. Iowa DOT 
explained that these components are not frequently used in highway 
construction projects. Instead, they are predominantly used for 
commercial applications around the world, in which material source of 
origin certifications and Buy America requirements are not applicable.
    The August 2020 letter from Iowa also explained that KONE Oyj was 
asked to review the potential for assembling non-standard elevators 
that would have a greater domestic steel and iron content to meet Buy 
America requirements. KONE Oyj provided an alternative design, but 
could still neither meet the Buy America requirements nor guarantee or 
certify the precise amount of domestic content. Moreover, the 
alternative design provided by KONE Oyj would not meet project 
requirements in terms of size, capacity, or safety. Regarding safety, 
elevators designed with unique, customized parts would be more 
difficult to maintain, which could impact the safety and reliability of 
their operation.
    Iowa DOT's August 2020 letter also addressed alternative designs 
that were considered such as rack and pinion elevators. Iowa DOT 
explained that rack-and-pinion elevators, which are used primarily as 
freight elevators, were not suitable to the elevator's intended purpose 
of passenger transport. Moreover, adding structural elements to the 
project design to support rack-and-pinion elevators could increase 
project costs by $2 million. It did not consider this cost increase 
feasible. An alternative design would also result in significant delays 
for the project. At the time of the letter, the I-74 Mississippi River 
Bridge was scheduled to open to Iowa-bound vehicle traffic at the end 
of 2020 and to Illinois-bound vehicle traffic before the end of 2021. 
The bridge subsequently opened to Iowa-bound traffic in December 2020 
and, as of September 2021, is currently facilitating two-way traffic 
(with two lanes in each direction) until construction is complete. The 
Illinois-bound section of the bridge is in the final stages of 
construction and is scheduled to open in December 2021.
    In the August 2020 letter Iowa DOT also reported that other 
alternative designs were considered, but also could not fully comply 
with Buy America requirements for all components and would result in 
significantly higher construction costs and lengthy project redesign. 
Thus, Iowa DOT did not find justification for pursuing the alternative 
designs.
    Iowa DOT also explained the current fiscal situation in the city of 
Bettendorf in the August 2020 letter. It explained that the COVID-19 
public health emergency has caused financial hardship for the city and 
that any additional costs associated with Buy America compliance, such 
as completely redesigning the elevators or adding structural 
components, would impact the city's ability to complete the project and 
fund necessary services.

[[Page 54283]]

    In October 2020, FHWA again contacted Iowa DOT with additional 
questions regarding its efforts to comply with Buy America and 
Executive Order 13788, 82 FR 18837 (Apr. 21, 2017), which was later 
revoked by Executive Order 14005. 86 FR 7475 (Jan. 28, 2021). FHWA also 
sought clarity on the scope of waiver the request. Later that month, 
Iowa DOT provided answers to FHWA's questions with additional 
information on its compliance efforts and a cost estimate sheet 
identifying all items for which it seeks a waiver (Exhibit D). A link 
to Exhibit D is included on the Notice of Buy America Waiver Request 
published on FHWA's website on January 5, 2021, as described below. All 
items included in the waiver request are identified as not meeting Buy 
America in the first column of Exhibit D. The estimated total cost of 
the waiver items is approximately $768,000. FHWA removed the cost 
estimates for individual line items in Exhibit D to maintain the 
confidentiality of the city's procurement-sensitive information during 
its solicitation process.
    In accordance with the Further Consolidated Appropriations Act, 
2020 (Pub. L. 116-94), FHWA published a notice seeking comment on 
whether a waiver was appropriate on its website, https://www.fhwa.dot.gov/construction/contracts/waivers.cfm?id=156, on January 
5, 2020.
    The FHWA received 36 comments in response to the publication. Seven 
commenters opposed the waiver and 29 commenters generally expressed 
support for it. Six of the comments opposing the waiver did not offer 
any information on the availability of compliant products, nor did they 
suggest specific, additional actions that Iowa DOT could take to 
maximize its use of goods, products, and materials produced in the U.S. 
Another commenter opposing the waiver suggested obtaining additional 
certification documentation from suppliers but did not offer specific 
information on compliant products or means of identifying them. Thus, 
Iowa DOT did not receive any new information indicating that the 
subject parts could be produced by domestic manufacturers.
    Although Iowa DOT did not identify compliant components for the 
let-down structures, it provided information to FHWA supporting its 
waiver request, including:
     Information describing its efforts to obtain the domestic 
content characteristics of the manufactured products needed;
     Information supporting the necessity of these specific 
let-down structures for the project's intended purpose of passenger 
transport and demonstrating that alternative designs were infeasible;
     Information documenting efforts to locate compliant 
manufactured products;
     Information documenting efforts to maximize domestic 
content even if full compliance was not possible, including efforts to 
have foreign manufacturers incorporate domestic steel; and
     Information describing the effects of denying the request.
    The following sections summarize relevant information from Iowa 
DOT.
    Although ultimately unsuccessful, Iowa DOT made substantial efforts 
to find suitable Buy America compliant components for the let-down 
structures.
    Timing and Need for a Waiver. The Iowa DOT maintains that approval 
of a Buy America waiver for the relevant components of the let-down 
structures is now critical to maintain the schedule of ongoing 
construction on the project. The I-74 Mississippi River Bridge opened 
to Iowa-bound vehicle traffic at the end of 2020 and is scheduled to 
open to Illinois-bound vehicle traffic before the end of 2021. Iowa DOT 
believes it has exhausted its options for domestic alternatives.
    Executive Order 14005. Executive Order 14005, ``Ensuring the Future 
is Made in All of America by All of America's Workers,'' provides that 
agencies should, consistent with applicable law, maximize the use of 
goods, products, and materials produced in, and services offered in, 
the U.S. 86 FR 7475 (Jan. 28, 2021). Based on the information contained 
in the waiver request from Iowa DOT and the lack of responsive comments 
following publication of a notice seeking comment on January 5, 2020, 
regarding available domestic manufacturers for the subject parts, FHWA 
concludes that issuing a waiver is not inconsistent with Executive 
Order 14005.

Finding and Request for Comments

    Based on all the information available to the Agency, FHWA 
concludes that there are no Buy America-compliant relevant components 
for the let-down structures for the pedestrian bridge associated with 
the I-74 Mississippi River Bridge Project, specifically including: (i) 
Traction elevator components; (ii) elevator guide rails; and (iii) 
certain auxiliary components of the elevators or let-down structures. 
This finding only includes components identified in the waiver request 
and supporting documents included on FHWA's website.
    Iowa DOT and its contractors and subcontractors involved in the 
procurement of the relevant components are reminded of the need to 
comply with the Cargo Preference Act in 46 CFR part 38, if applicable.
    In accordance with the provisions of Section 117 of the SAFETEA-LU 
Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), 
FHWA is providing this notice as its finding that a waiver of Buy 
America requirements is appropriate. The FHWA invites public comment on 
this finding for an additional 5 days following the effective date of 
the finding. Comments may be submitted to FHWA's website via the link 
provided to the waiver page noted above.
    Authority: 23 U.S.C. 313; Pub. L. 110-161; 23 CFR 635.410.

Stephanie Pollack,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2021-21293 Filed 9-29-21; 8:45 am]
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